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Trademark & Brand Name Registration, India

Trade Mark and/or Brand Name are the capable of distinguishing
the goods manufactured by one manufacturer or service provider from that of
others. We need to have protection over our Trade Mark or Brand Name as it
represents our organization to the world. We today are very brand conscious and
trade mark is certainly very precious and significant if we wish to create
brand.

Benefits of
Registration of Trademark

Trademark provides nationwide protection to the
businessman.

It ensures that the name of Business entity remains
protected as others can not use it for their business. Registered Trademark
acts as a constructive notice to all other persons that they shall be refrained
from using the trademark as their own.

Once trademark is registered it prevents likelihood that
any other party claims as its their trademark.

Once the trademark is registered, it is visible on India’s trademark portal @ ipindia.nic.in
and also easily searched on the same by agents or attorney, so that they shall
not proceed with the registration of same or similar trademark.

Registered trademark holder can sue any other person for
infringement, if that person uses the trademark without consent of owner for
his benefit.

Trademark is significant from the point of view of the
layman as, it is very important that brands remain protected or else anyone
will come up in the market and start his own product in the name of reputed
brand and confuse the consumer.

It also plays vital role as to protect creditworthiness of
the brand created by a businessman by prolonged quality. If the protection is
not there any person with substandard goods may hamper the good credentials of
businessman.

Section 27 of The
Trademarks Act, 1999

No Action for infringement of unregistered trademark.

No person shall be entitled to institute any proceeding to
prevent, or to recover damages for, the infringement of an unregistered trade
mark.

Nothing in this Act shall be deemed to affect rights of
action against any person for passing off goods or services as the goods of
another person or as services provided by another person, or the remedies in
respect thereof.

Interpretation to
section 27 of Trademarks Act, 1999

Accordingly any person whose logo or mark is not
registered, is not entitled to bring suit against any other person for
infringement of his mark nor he can ask for any compensation for that same.
However it recognizes the common law rights of the trade mark owner to take
action against any person for passing off goods as the goods of another person
or as services provided by another person or the remedies thereof.

Soft Search: It is very important to take soft
search of the logo or mark proposed to be registered. Previously Trademark
authorities provided the facility for physical search by them on payment of Rs.
500/-, however after updation of Trademark portal, physical search facility is
no longer available and applicant must make a soft search w.r.t. trademark
proposed to be registered.

Preparation of
Application:
After search completed and on being satisfied that prima facie same or similar
mark is not registered under same class, applicant can process ahead for
registration.

The application has to be made in prescribed form. The
forms should be filled up as per the formats provided under Trademark Rules and
forms.

Along with application, fees has to be paid as prescribed
by Trade mark authorities.Currently its
Rs. 3500/-

After making application to the trademark authorities,
scrutiny is done by registering authorities. If any incomplete information is
given, same is notified to the applicant.

After acceptance of application we get the application
number for future reference.

After that the Trademark is published in trademark
journal.

If at the time of publication of trademark in journal, no
objection is received then trademark shall be processed and registered.

If any opposition is received on the trademark so
published, then Registrar issues applicant notice of opposition.

On receipt of this opposition letter, applicant needs to
file his reply for the same. If necessary Registrar issues order for hearing on
the same.

After hearing the Registrar shall give his decision.

If case is decided in favor of applicant, the Registrar
shall issue Certificate of registration otherwise application for registration
shall be rejected.

Effect of
Registration of Trademark

Once the trademark is registered the owner of the same
gets absolute right w.r.t that trademark and no other person is allowed to copy
or otherwise make use of same or similar trademark. The owner shall get the
right to sue any person for infringement of the same or receive the
compensation from the person infringing the trademark.

In India trademark is registered in 45
classes according to Fourth Schedule to the Trade Mark Rule, 2002. The
Classification is mainly based on two broad categories i.e. Manufacturer and
Service Provider. First 34 Classes i.e. 1 - 34 are for Manufacturer whereas
Class No. 35 - 45 are for various services.

2. Paints, varnishes, lacquers; preservatives against rust
and against deterioration of wood; colourantsmordantsraw natural resins;
metals in foil and powder form for painters; decorators; printers and artists

6. Common metals and their alloys; metal building
material; transportable buildings ofmetal for railway tracks; non electric cables and wires of common metal;
ironmongery, small items of metal hardware; pipes and tubes of metal; safes;
goods of common metal but not included in other classes; ores

7. Machines and machine tools; motors and engines (except
for land vehicles); machine coupling and transmission components (except for
land vehicles); agricultural implements other than hand-operated; incubators
for eggs

17.Rubber, gutta
percha, gum, asbestos, mica and goods made from these materials and not
included in other classes; plastics in extruded form for use in manufacture;
packing, stopping and insulating materials; flexible pipes, not of metal.

18. Leather and imitations of leather, and goods made of
these materials and not included in other classes; animal skins, hides, trunks
and travelling bags; umbrellas, parasols and walking sticks; whips, harness and
saddler.

21. Household or kitchen utensils and containers(not of
precious metal or coated therewith); combs and sponges; brushes(except paints
brushes); brush making materials; articles for cleaning purposes; steel
woolnon worked or semi-worked glass
(except glass used in building); glassware, porcelain and earthenware not
included in other classes.

31. Agricultural, horticultural and forestry products and
grains not included in other classes; live animals; fresh fruits and
vegetables; seeds, natural plants and flowers; foodstuffs for animals, malt.

32. Beers, mineral and aerated waters, and other
non-alcoholic drinks; fruit drinks and fruit juices; syrups and other
preparations for making beverages

45. Legal services; security services for the protection
of property and individuals; personal and social services rendered by others to
meet the needs of individuals.

At the time of filing we have to select the class under
which our product or service falls. The Fees is charged on the basis of per
class, hence in case of multiple classes we need to pay that much fees.

Parts of an article or apparatus are, in general
classified with the actual article or apparatus, except where such parts
constitute articles included in other classes.